For many users, Facebook feels like a utility. Facebook users use Facebook to create new things and expect it to work reliably; users don’t expect Facebook will terminate them capriciously. Thus, when Facebook blocks users’ content, it can be shocking to users. The power company can’t just turn off a customer’s power. Does Facebook get to play by different rules?

Yes, it does. Facebook’s right to block user content is protected under multiple legal doctrines, including the First Amendment, federal law and its contract. Not surprisingly, then, a federal judge recently upheld Facebook’s right to block a user’s page in India even though Facebook never explained why.

The Case

Sikhs for Justice (“SFJ”) is a human rights group advocating for Sikh independence in the Indian state of Punjab. It set up a Facebook page for its organization. SFJ alleges that, in May, Facebook blocked its page in India at the Indian government’s behest. Facebook allegedly did not restore access to the page despite repeated requests, nor did it provide any explanation for the page block. SFJ sued Facebook for several causes of action, including a federal claim of race discrimination.

Judge Koh dismissed the discrimination claim, citing 47 USC 230 (Section 230), a federal law enacted in 1996. Section 230 has two key provisions. 230(c)(1) says that websites aren’t liable for third party content. Section 230(c)(2) says websites aren’t liable for their filtering decisions. The judge relied exclusively on Section 230(c)(1), explaining that the content at issue (the SFJ page) was provided by someone other than Facebook (i.e., SFJ), and the only allegedly “discriminatory” behavior was Facebook’s decision not to publish SFJ’s content. The court also rejected SFJ’s argument that Facebook owed it an explanation.

Implications

The court’s dismissal of SFJ’s case isn’t surprising. Indeed, in 2003, a court used Section 230 to reject federal discrimination claims against AOL for how it handled third party content (the uncited Noah v. AOL case). Numerous other cases have upheld websites’ rights to block user content however they see fit. See, e.g., Klayman v. Facebook; Riggs v. MySpace.

What is a little surprising is that the court didn’t mention Section 230(c)(2), which was designed exactly for this situation. From my perspective, Section 230(c)(2)’s non-appearance highlights its weakness as a safe harbor. Section 230(c)(2) requires the website to make its blocking decision “in good faith,” and determining good faith takes more time and money to resolve. Relying on Section 230(c)(1) bypassed the need for that factual inquiry, so the judge could resolve this case now.

The judge also doesn’t discuss Facebook’s First Amendment freedom of the press, but that could have been another grounds for protecting Facebook’s editorial discretion. See the uncited Zhang v. Baidu case, another example of a private lawsuit to combat a website’s alleged acceptance of a foreign government’s censorship request.

Although this was an easy case under current law, we shouldn’t overlook Facebook’s alleged complicity with a foreign government censorship requests. Unfortunately, websites have few good options when governments make such demands. No matter how much the website philosophically embraces free speech, refusing the “request” can lead to bad consequences for the website–potentially including money damages, blocking of some or all of the website in the foreign country, and (in extreme cases) potential criminal sentences against the website’s executives. In this particular case, we don’t know what, if any, communications took place in this case between Facebook and India. However, we do know that websites with a global scale routinely accede to foreign governments’ censorship demands.

In light of the website’s dilemma, private lawsuits against the website for blocking their content are completely inappropriate; and I’m glad that laws like Section 230 end those lawsuits quickly. Still, the foreign censorship demands are also unacceptable and need to be squelched. The best way would be for the U.S. government to intercede against these overreaching foreign censorship demands. Yet, for reasons I don’t understand, protecting U.S.-based Internet companies from foreign censorship demands has apparently ranked fairly low on the priority list of the U.S. Trade Representative and most other U.S. government officials.

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If Facebook did this IRL, it would be a clear violation of the Civil Rights Act regardless of the foreign country’s demands. In this instance (like most applications of 230), Facebook is actually the entity in the best position to resolve the “dilemma,” but Section 230 has taken away any incentive for it to do so. Since Section 230 gives Facebook complete immunity, the only logic choice is for it to make the decision that avoids possible sanctions. As far as Facebook is concerned, there is no dilemma. As far as freedom and the libertarian spirit Section 230 was intended to incubate are concerned, the exact wrong thing is happening.

Thanks for commenting, but respectfully I disagree with pretty much the entire comment. I’ll just pick off three points:

1) Print publishers can exercise their editorial discretion with full constitutional protection, so “IRL” the result would be the same.

2) Internet companies are not in the best position to “resolve the dilemma” because they lack the coercive powers that the US government has. Cf. Google’s attempts to stand up to China.

3) I have not seen any empirical evidence suggesting that Section 230 is contributing to a decline of our “freedom and libertarian spirit.” The empirical evidence strongly points in the opposite direction. The best evidence is comparing the type of editorial diversity and private censorship we see in the US, where entities are protected by 230, with what we see in every other country in the world.

Still, I do agree that we’re seeing a waning of our Internet freedoms and liberties compared to the good ole days, but I believe Section 230 is slowing the degradation, not causing it.